Madras High Court
T.Rajasekar vs The Inspector General Of Police on 2 February, 2017
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02.02.2017 Coram THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN W.P.(MD)No.5147 of 2011 and M.P.(MD)No.2 of 2011 T.Rajasekar .. Petitioner -Vs- 1.The Inspector General of Police, (Training), Police Training College, Ashok Nagar, Chennai. 2.Principal, Police Training School, Peroorani, Thoothukudi District. .. Respondents Prayer:- Writ Petition filed under Article 226 of the Constitution of India, for issuance of Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned order of desertion passed by the 2nd respondent made in Na.Ka.No.A2/518/PTS/2010 dated 30.09.2010 and consequential disciplinary proceedings in PR.No.1/2010 dated 28.10.2010 issued by the 2nd respondent and the consequential proceedings of the 1st Respondent made in C.No.A2/Appeal-5/2012 dated 28.03.2013, quash the same and consequently direct the 2nd respondent to admit the petitioner for duty as RPC No.160. (Prayer amended vide Court order dated 17.03.2016 in MP(MD)No.1/15) !For Petitioner : Mr.S.Balamurugan ^For Respondents : Mr.K.Guru (for R1) Additional Government Pleader :ORDER
That the impugned order of desertion passed by the 2nd respondent in Na.Ka.No.A2/518/PTS/2010 dated 30.09.2010 and consequential disciplinary proceedings in PR.No.1/2010 dated 28.10.2010 issued by the 2nd respondent and the impugned order passed in C.No.A2/Appeal-5/2012 dated 28.03.2013 by the 1st respondent are sought to be quashed with a consequential direction by directing the 2nd respondent to admit the petitioner for duty as RPC No.160 and the petitioner filed the instant writ petition.
2.According to the petitioner, he was selected by Tamil Nadu Uniformed Services Recruitment Board on 16.03.2010 and was appointed as Grade-II Police Constable. Further, the petitioner was joined duty at the Police Training School, Pearurani, Thoothukudi District. When he was on training, on 19.05.2010 and 20.05.2010, he availed 2 days casual leave. Further, he was recommended for medical leave from 21.05.2010 to 01.07.2010. After the completion of the medical leave, on 02.07.2010, he reported for duty with necessary medical certificate. Thereafter, again he was granted causal leave on 05.07.2010 and 06.07.2010 due to sickness. Again the petitioner was recommended for medical leave from 07.07.2010 to 08.09.2010. The petitioner specifically pleaded that he used to sent all the medical leave certificates then and there to the 2nd respondent through registered post with acknowledgment due. In the mean while, the petitioner obtained medical certificates to show his fitness and reported before the 2nd respondent for duty on 09.08.2010.
3.The further case of the petitioner is that however, the petitioner was not permitted to join duty, but he was directed to appear before the Chairman, Medical Board at Government Rajaji Hospital, Madurai for medical examination. As the petitioner did not receive any communication from the medical board on 13.08.2010 and 21.08.2010, he reported before the 2nd respondent with relevant medical certificates with a request to permit him to join duty. Finally on 28.08.2010, the petitioner appeared before the medical board, but he was informed that as per the letter of the 2nd respondent the petitioner was on medical leave only up to 20.08.2010. So, the petitioner was directed to get further instructions from the 2nd respondent. Subsequently, the 2nd respondent issued another letter to the medical board and the petitioner appeared before the board on 02.09.2010. However, he was instructed to appear before the medical board on 07.09.2010 and accordingly he appeared and was issued fitness certificate to join duty from 08.09.2010. When the petitioner reported before the 2nd respondent, he was informed that the Training and Passing-Out Parade were over on 06.09.2010 itself. So, he was instructed to appear before the 1st respondent. In the mean while, the 2nd respondent issued the Desertion Order dated 30.09.2010 by affixing the same at the residence of the petitioner stating that since 09.09.2010, the petitioner was absent from duty. Subsequently, a charge memo dated 23.11.2010 was issued under rule 3 (b) of Tamil Nadu Police Subordinate Service (Discipline and Appeal Rules) and the enquiry was initiated. It is the case of the petitioner that on 08.09.2010 and 09.09.2010, the petitioner was present at the Police Training School and thereafter went to Chennai to meet the 1st respondent. However, as he was not given proper instructions, he was again forced to avail medical leave on 09.09.2010 to 02.10.2010.
4.The further case of the petitioner is that as per the Desertion Order dated 30.09.2010, he was directed to appear before the 2nd respondent within a period of 60 days that is on or before 07.11.2010 and should explain the reason for his absent. When the petitioner, on 14.10.2010 appeared before the 2nd respondent with fitness certificate, he was not permitted to join duty but was directed to appear before the medical board. As per the direction of the board, the petitioner appeared before the board on 30.11.2010 and was issued with medical fitness certificate by giving effect from 01.12.2010. So, the case of the petitioner is that he was on medical leave from 09.09.2010 to 30.11.2010. On the other hand, on 28.10.2010 he was issued a charge memo by framing 8 charges in availing causal and medical leaves against the leave rules. On 08.12.2010, he was issued additional charge memo by the 2nd respondent. Therefore, the charges and the additional charges are as follows:
?gapw;rpf; fhtyh; 160. j/,uh$nrfh;. fhty; gapw;rpg; gs;sp. ngU:uzp vd;gth; kPJ bjhLf;fg;gl;l Fw;wr;rhl;L Fw;wr;rhl;L 1 19/05/2010 Kjy; 20/05/2010 tiu jw;bray;tpLg;gpy;
CUf;F brd;wth; 21/05/2010 Kjy; 30/05/2010 tiu
kUj;Jt tpLg;g[ nfhhp rkh;g;gpj;j kDtpy; tpLg;g[ Kfthp
bjhptpf;fhky; tpLg;g[ tpjpfis kPwpa bray;/
Fw;wr;rhl;L 2 31/05/2010 K/g gzpf;F mwpf;if bra;a ntz;oa ePh; tuhky; ve;jtpj tpLg;ngh mDkjpnah bgwhky; 20 ehl;fSf;F nky; Mg;brd;lhf ,Ue;j ePh; 21/06/2010 md;W 31/05/2010 Kjy; 29/06/2010 tiu tpLg;g[ Kfthp Fwpg;gplhky; kUj;Jt tpLg;g[ mDg;gpa[s;sjhy; tpLg;g[ tpjpfis kPwpa bray;/ Fw;wr;rhl;L 3 30/06/2010,y; gzpf;F mwpf;if bra;a ntz;oa ePh;
mwpf;if bra;ahky;. ,uz;L ehl;fSf;F kUj;Jt tpLg;g[
bgw;W (30/06/2010 kw;Wk; 01/07/2010) 02/07/2010 K/g
mwpf;if bra;J bfhz;L tpLg;g[ tpjpfis kPwpa bray;/
Fw;wr;rhl;L 4 05/07/2010 kw;Wk; 06/07/2010 Mfpa ,U
jpd';fSf;F rpW tpLg;gpy; brd;w ePh; 07/07/2010 Kjy;
16/07/2010 tiu 10 ehl;fSf;F tpLg;g[ nfhhp rkh;g;gpj;j
kDtpy; tpLg;g[ Kfthp bjhptpf;fhky; tpLg;g[ tpjpfis kPwpa bray;/
Fw;wr;rhl;L 5 17/07/2010 K/g gzpf;F mwpf;if bra;a ntz;oa
ePh; gzpf;F mwpf;if bra;ahky; ve;j xU jftYk;
bjhptpf;fhky; 12 ehl;fSf;F gpwF 17/07/2010 Kjy;
05/08/2010 tiu tpLg;g[ nfhhpa tpz;zg;gj;jpy;
tpLg;g[ Kfthpa[k; bjhptpf;fhky; tpLg;g[ tpjpfis kPwa
bray;/
Fw;wr;rhl;L 6 06/08/2010 K/g gzpf;F mwpf;if bra;a ntz;oath;
gzpf;F mwpf;if bra;ahkYk; ve;jtpj jftYk; bjhptpf;fhky; 7 ehl;fSf;F gpwF mDg;gpa (06/08/2010 Kjy; 20/08/2010 tiu) kUj;Jt tpLg;g[ tpz;zg;gj;jpy; tpLg;g[ Kfthpa[k; bjhptpf;fhky;
tpLg;g[ tpjpia kPwpa bray;/ Fw;wr;rhl;L 7 21/08/2010 K/g gzpf;F mwpf;if bra;a ntz;oa ePh; gzpf;F mwpf;if bra;ahkYk;. vt;tpj Kd; mDkjpa[k; bgwhkYk; 14 ehl;fSf;F gpwF 06/09/2010 md;W ngf;!py;
mDg;gpa tpLg;g[ tpjpfis kPwpa bray;/ Fw;wr;rhl;L 8 09/09/2010 K/g gzpf;F mwpf;if bra;a ntz;oa ePh; 21 ehl;fSf;F nky; Mg;brd;lhf ,Ue;j fhuzj;jpdhy; ,t;tYtyf g/M/vz;/35-2010 ehs; 30/09/2010 tpl;nlho Miz gpwg;gpf;fg;gl;L ePh; trpf;Fk; m-12-2 ngiua{h; fhtyh; FoapUg;gpy; fpuhk cjtpahsh; Kd;dpiyapy; fjtpy; xl;o rhh;g[ bra;ag;gl;lJ/ nkYk; gjpt[ jghypYk;
mDg;gg;gl;lJ/ mjpy; 60 ehl;fSf;Fs; mjhtJ 07/11/2010?f;Fs; Kjy;th;-fhty; fz;fhzpg;ghsh;
mth;fs; Kd; M$uhfp jhd; tpl;nlhoahdjw;fhd
fhuz';fis jf;f Mjhu';fSld; Tw ntz;Lk; vdj;
bjhptpj;jpUe;Jk; ePh; M$uhfhjJ fh/ep/ Miz vz;/88(1)d;
go jz;of;fg;gl ntz;oa bray;/?
5.On receipt of charge memo, the petitioner on 06.04.2011 has given his explanation for both the charges and the Additional charges, the explanation was given as follows:-?Charge No.1 to 7
5.The first count of charge is that I did not furnish my leave address in my application for medical leave from 21.5.10 to 30.5.10. Similarly the fourth count of charge is that I did not furnish my leave address in my application for medical leave from 7.7.10 to 16.7.10. I was granted two days casual leave on 19.5.10 and 20.5.10 by the Vice Principal and on 18.5.10 AN I was issued with leave passport by Tr.P.Chandran Sub Inspector of police to avail two days casual leave. Then I availed medical leave from 21.5.10 to 30.6.10 and I submitted medical certificates for the period of absence. I furnished my leave address before I was issued with passport to avail two days casual leave. Similarly I was granted two days casual leave on 5.7.10 and 6.7.10 by the Vice Principal and I was issued with leave passport to avail two days casual leave. I furnished my leave address before I was issued with passport to avail two days casual leave. Then I availed medical leave from 7.7.10 to 7.9.10 till the medical board issued fitness certificate that I was fit for duty from 8.9.10. The charge is that I did not furnish my leave address in my application for medical leave. In my case, I availed medical leave in continuance of my casual leave. Since I have furnished my leave address before I proceeded on casual leave, it was not necessary to furnish my leave address again in my application for medical leave unless I change my leave address. My present address has been mentioned in all correspondence.
According to PSO 272(2) all subordinate police officers before proceeding on leave should communicate their address to their immediate superior and keep him informed of any change of address. It clearly goes to show that unless the leave address is furnished, he will not be issued with leave passport. Had I not furnished my leave address before proceeding on leave, I would not have been issued with the leave passport by the Sub Inspector of police. I availed medical leave in continuation of casual leave availed by me. Since there was no change in my leave address I did not furnish leave address in the application for medical leave.
A charge in order to be definite must necessarily mention distinctly the accusation against the government employee and also the particulars of provision of rule or law, which has been contravened by him. Further the charge does not say the specific rule or procedure alleged to have been violated by me in availing leave.
6.For the foregoing reasons I have clearly established that I have furnished my leave address before I proceeded on two days casual leave on 19.5.10 and 20.5.10 and then on 5.7.10 and 6.7.10. Since I availed medical leave in continuation of casual leave and there was no change in my leave address I did not furnish again my leave address in my applications for medical ground. Thus, the charge No.1 to 7 that I failed to furnish my leave address in my application for medical leave fall to the ground.
Charge No.8
7.The eighth count of charge dated 28.10.10 is that I was absent for 21 days from 9.9.10 FN and on 30.9.10 I was treated as deserter and the order of desertion was affixed on the door of my house at Peraiyur in the presence of Village Administrative Officer and Village Assistant and the order of desertion was sent to me by registered post directing me to appear before the Principal/Superintendent of police, Police Training School within 60 days i.e 7.11.10 from the date of desertion with explanation for the absence but I did not appear before the Principal/Superintendent of police, Police Training School and thereby I have committed misconduct punishable under PSO 88(1).?
6.Thereafter, an enquiry officer was appointed and the enquiry was commenced and the enquiry officer found that all the charges have been proved and finally the punishment of Removal from Service was imposed upon the petitioner on 16.11.2012. Against the punishment of removal from service, the petitioner preferred an appeal before the Deputy Inspector General Of police, but the same was rejected by the order dated 28.03.2013 which is impugned in the writ petition. Since, punishment imposed upon the petitioner is disproportionate; the instant writ petition is filed to quash the same.
7.The counter affidavit filed by the 2nd respondent is carefully perused and found that the petitioner was absent from duty by availing leave and medical leave without adhering the leave rules. Hence, charge memo with 8 counts was issued and enquiry was contemplated. In the enquiry all the charges against the petitioner were proved and he was imposed to punishment of removal from service. Further, the learned Government Advocate would submit that the petitioner was removed from service after enquiry with due process of law. Hence, he prays for the dismissal of the writ petition.
8.I heard Mr.S.Balamurugan, learned counsel appearing for the petitioner and Mr.K.Guru, learned Additional Government Pleader appearing for the 1st respondent.
9.The crux of the charges framed under Rule 3(b) Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules would show that the petitioner availed casual leaves and medical leaves on various dates as stated above without properly adhering the procedure laid down in the leave rules. That he deserted duty and failed to report before the 2nd respondent within 60 days from the desertion.
10.Whereas, the case of the petitioner is that he entered on casual leaves and medical leaves due to his ill-health and extend the same in accordance with law and also in accordance with the medical certificates. When the counter affidavit is perused, it is stated that when he was in the Police Training School, he did not fell into sickness, but the genuineness of the medical certificates are not been disputed by the respondents.
11.At this juncture the judgment of this Hon?ble Court in the case of S.Shanmugarajan v. The State of Tamilnadu rep. By the Director General of Police, Mylapore, Chennai-600 004 and others in W.A.No.1608/2011 dated 26.02.2013 relied on by the learned counsel by the petitioner is gone into and found that identical issue is discussed as follows:
?The issue as to whether on the act of desertion, a person could be dismissed from the service or not was considered by the Honourable Supreme Court in the decision reported in 2004(4) SCC 560 (SHRI BHAGWAN LALARYA v COMMR. OF POLICE) wherein in paragraphs 11 and 14, it is held thus, The order dated 16.01.1995 passed by the respondents was produced by the respondents themselves in their reply to CWP before the High Court of Delhi that they had sanctioned leave without pay for the period from 07.10.1994 to 15.12.1994, the period of alleged unauthorized absence. The High Court has failed to appreciate and evaluate this aspect of the matter. The High Court also did not appreciate that after issuing sanction for leave for the period in question, the employee?s legitimate expectation would be that no stern action would be taken against him with respect to the alleged act of misconduct which by no stretch of imagination can be considered an act of gross misconduct or continued misconduct indicating incorrigibility and complete unfitness for police service. It is not that case of the respondents that the appellant is a habitual absentee. He had to proceed on leave under compulsion because of his grave condition of health and, therefore, the punishment of removal from service is excessive and disproportionate. We are of the view that the punishment of dismissal/removal from service can be awarded only for acts of grave nature or as cumulative effect of continued misconduct proving incorrigibility or complete unfitness for police service.
Merely on incident of absence and that too because of bad health and valid and justified grounds/ reasons cannot become the basis for awarding such a punishment. We are, therefore, of the opinion that the decision of the disciplinary authority inflicting a penalty of removal from service is ultra vires Rules 8(a) and 10 of the Delhi Police (Punishment and Appeal) Rules, 1980 and is liable to be set aside. The appellant also does not have any other source of income and will not get any other job at this age and the stigma attached to him on account of the impugned punishment. As a result of which, not only he but his entire family totally dependent on him will be forced to starve. These are the mitigating circumstances which warrant that the punishment/order of the disciplinary authority is to be set aside. Thus, the present one is a case wherein we are satisfied that the punishment of removal from service imposed on the appellant is not only highly excessive and disproportionate but is also one which was not permissible to be imposed as per the Service Rules. Ordinarily we would have set aside the punishment and sent the matter back to the disciplinary authority for passing the order of punishment afresh in accordance with law and consistently with the principles laid down in the judgment. However, that would further lengthen the life of litigation. In view of the time already lost, we deem it proper to set aside the punishment of removal from service and instead direct the appellant to be reinstated in service subject to the condition that the period during which the appellant remained absent from duty and the period calculated up to the date on which the appellant reports back to duty pursuant to this judgment shall not be counted as a period spent on duty. The appellant shall not be entitled to any service benefits for this period. Looking at the nature of partial relief allowed hereby to the appellant, it is now not necessary to pass any order of punishment in the departmental proceedings in lieu of the punishment of removal from service which has been set aside. The appellant must report on duty within a period of six weeks from today to take benefit of this judgment.?
12.The Hon'ble Apex Court in the said judgment was considered based on the orders passed by the Hon'ble Supreme Court in B.C.Chaturvedi v. Union of India (three Judge Bench) reported in (1995) 6 SCC 749. The Hon'ble Division Bench reported in (2004) 4 Supreme Court Cases 560 held that the Hon'ble three Judge Bench question posed for consideration was as to whether the High Court/Tribunal can direct the authorities to reconsider the punishment with cogent reasons in support thereof or reconsider themselves to shorten the litigation. Considering that the Hon'ble Supreme Court in the judgment rendered in (1995) 6 SCC 749 and the Judgment (three Judge Bench) in para-18 passed orders as follows:-
?18.A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.?
13.The Hon'ble Apex Court in yet another Judgment in Krushnakant B.Parmar v. Union of India reported in (2012) 3 Supreme Court Cases 178, it was held that as follows:-
?for punishing a person for unauthorised absence, wilful absence must be proved and if the person has absented due to compelling circumstances, his absence cannot be held to be wilful. The dismissal order confirmed by the Central Administrative Tribunal as well as the High Court was set aside with 50% backwages.?
14.Based on the above judgment in an identical set of fact the Hon'ble Division Bench of this Court has passed order in R.Ramesh v. The Deputy Inspector General of Police and other in W.A.No.58 of 2011 dated 27.01.2011 held as follows:
"................ we are prima facie of the view that the punishment imposed on the appellant is disproportionate to the charge levelled against him and it is in fact, shocking the conscience of this Court. We, therefore, allow this writ appeal, set aside the impugned judgment passed by the learned single Judge and remit back the matter to the disciplinary authority, viz, the second respondent herein, to reconsider the matter with regard to the quantum of punishment imposed on the appellant and to take a decision within six weeks from today. It is made clear that in the event the quantum of punishment imposed on the appellant is reduced, he shall not make any claim with regard to the wages for the period he has not performed his duty, but the continuity in service will not be affected. ..........."
15.Pursuant to the above, in yet another case, the Hon'ble Division Bench of this Court in W.A.No.1608 of 2011 dated 26.02.2013 in S.Shanmugarajan v. The State of Tamilnadu rep. By the Director General of Police, Mylapore, Chennai 600 004 and others held as follows:
?9.Thus proportionately of the punishment has to be gone into by the Disciplinary Authority as well as by the Appellate Authority. The said aspect has not been considered in this case by the learned Single Judge. Hence, the order of the learned Single Judge is set aside and the matter is remitted back to the fourth respondent to consider the issue regarding the proportionality of the punishment and pass fresh orders within a period of eight weeks from the date of receipt of copy of this order. It is also made clear that in the event the quantum of punishment is reduced, the appellant shall not claim backwages for the period in which he has not performed his duty.?
The same is view taken by the Hon'ble Supreme Court in V.Ramana vs. A.P.SRTC reported in (2005) 7 SCC 338 and Jagdish Singh vs. Punjab Engineering College reported in AIR 2009 SC 2458.
16.In both the cases, the Hon'ble Apex Court looked into the question of proportionality of the quantum of punishment and interfered with the quantum of punishment holding that the punishment of the appellant of dismissal from service as imposed by the disciplinary authority is substituted to one of the compulsory retirement from the date of his dismissal from service.
17.The learned Single Judge has considered the case in K.Ravikumar v. The Deputy Commissioner of Police, Washermanpet Police District, Chennai City and others in W.P.No.30621 of 2008 dated 19.09.2011 held as follows:
?11.The High Court, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of this court, it would appropriately mould the relief, either directing the disciplinary/appellate authority to re-consider the penalty imposed or to shorten the litigation, it may itself, in exceptional and rare cases impose appropriate punishment with cogent reasons in support thereof. This aspect has been examined and legal principles are settled in respect of 'interference in the quantum of punishment' to say that it is always open for the disciplinary authority or the appellate authority to decide the quantum of punishment in a case of misconduct and the role of the court is only secondary. As such, this court, while considering the above legal principles, decisions rendered by the Supreme Court as well as this court and the circumstances under which the authorities have proceeded to impose the punishment on the petitioner, is of the view that the quantum of punishment imposed on the petitioner is shockingly disproportionate and requires interference.
12.Therefore, I am of the view that interest of justice would be met by setting aside the order of the respondents and accordingly, the order of the respondents 1, 2 and 3, dated 24.07.2007, 25.09.2007 and 12.05.2008, respectively, are set aside and the matter is remitted to the 3rd respondent to consider the said issue of proportionality of the punishment and pass fresh orders within a period of eight (8) weeks from the date of receipt of a copy of this order.?
18.Considering all the judgments rendered by the Hon'ble Apex Court and this Court, the legal position is very clear that removal from service passed on the charge of unauthorized absent from the duty is disproportionate undoubtedly. Moreover, the respondents have not raised any doubts over the medical certificate obtained by the petitioner with regard to its genuineness. Once the genuineness of the medical certificates is accepted by the respondents, the punishment imposed upon the petitioner is definitely disproportionate. Apart from that the period between the availing of leave by the petitioner is all after the joining of duty. The absent are supported with medical certificate issued by the competent medical board. So, the punishment of removal from service is heinous and cannot be proportionate with the charges. Once, it is found that the punishment imposed upon the petitioner is not proportionate to the charges, then the writ petition is liable to be allowed and the impugned orders of the respondents are liable to be quashed.
19.In the result:
a) this writ petition is allowed, by setting aside the order passed in Na.Ka.No:A2/518/PTS/2010 dated 30.09.2010 by the 2nd respondent and confirming the order of the 1st respondent;
b) the 2nd respondent is hereby directed to admit the petitioner for duty as RPC.No.160 and pay back all service and monetary benefits to the petitioner from 16.11.2012.
c) the said exercise shall be done within a period of four weeks from the date of receipt of a copy of this order. No costs.
To The Inspector General of Police, (Training), Police Training College, Ashok Nagar, Chennai..